Whitney v. Tibbol

• Decision Date: 06 February 1899
• Docket Number: 458.
• Citation: 93 F. 686
• Parties: WHITNEY et al. v. TIBBOL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

93 F. 686

WHITNEY et al. v. TIBBOL et al.

No. 458.

United States Court of Appeals, Ninth Circuit.

February 6, 1899

Myrick & Deering and A. P. Van Duzer, for appellants.

H. W Hutton, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

The appellees were seamen on a voyage upon the barkentine Marion from San Francisco to Alaska. On their return to San Francisco they libeled the bark for their wages, and she was sold. Her proceeds were insufficient to pay the wages, and the appellees libeled and caused to be seized her cargo consisting of 850 barrels of salmon in a warehouse in San Francisco, claiming that they had a lien thereon to the extent of the freight. The substance of the allegations of the libel was that the owners of the bark were the owners of the salmon, and that the latter owed freight money to the vessel, which had not been paid, in the sum of $1,750. The appellants, C. E. Whitney & Co., answered, denying that the owners of the vessel ever owned the salmon, and denying that any freight money was due, and alleging that all freight had been paid. The district court decreed that the owners of the vessel owned the salmon, and that the seamen had a lien upon the latter for the freight, which was fixed at the sum of $850, or at the rate of $1 per barrel. Upon the appeal it is contended that the district court erred in ruling-- First that freight was due to the ship from the owners of the salmon; second, that the owners of the vessel were the owners of the cargo; and, third, that the seamen had a lien upon the salmon, and could seize the same in the possession of the appellants after the termination of the voyage.

The only proof that freight had been earned, and that the freight money had not been paid, is furnished in a stipulation of the parties to the effect that, prior to the departure of the bark on the voyage in question, the appellants advanced to the owners of the vessel money and merchandise, in fitting her out and furnishing her supplies, in the sum of $4,400; that, upon the return of the vessel, the cargo was taken therefrom and placed upon a wharf; and that the appellants took it from the wharf, and put it in a warehouse, and claimed it in payment of their advances. It follows, from this stipulation, that the owners of the vessel owned the cargo up to the time when it was delivered to the appellants. This is necessarily implied in the admission that the latter took it in payment of advances. It also is implied in the stipulation that no freight had been paid for the cargo. To whom and how could freight have been paid, when it is conceded that the whole of the cargo was turned over to the appellants in payment of what was due them? The owners of the cargo up to the time of its delivery to the appellants were also the owners of the vessel. The appellants could not have paid the freight. Under the admitted facts it was impossible that they should have done so. They had made advances to the vessel to a greater amount than the value of the cargo, and they received the cargo in part payment. The owners could not have paid the freight, for to have done so would have been to pay themselves. It is the legitimate and fair inference from the admitted facts that the freight was not paid, and if, to the knowledge of the appellants, it had in any way been paid, they should have shown the facts and the circumstances of the payment. It was admitted that the sum of $1 was reasonable freight.

Did the seamen have a lien upon the cargo for the freight? and, if so, was the lien lost by the delivery of the cargo to the appellants? The general proposition is not disputed that seamen have a lien for their wages upon both the...